WASHINGTON – The U.S. Supreme Court on June 25 narrowed the scope of Arizona’s tough anti-immigration law, but left in place a controversial provision allowing police to check the immigration status of people they detain.
While the law’s opponents, for the most part, applauded the court’s ruling, supporters of Arizona’s law seized on the provision left intact. They suggested that dozens of other states now should act to empower local law enforcement officials to verify the immigration status of people arrested or detained during a legitimate stop if police have a reasonable suspicion that the person stopped is illegal.
However, Anthony Romero, executive director of the American Civil Liberties Union, said in a statement, “The Supreme Court’s decision to uphold the ‘show me your papers’ provision for now will lead to widespread civil rights violations until it is reviewed again and possibly struck down. Today’s decision is an invitation for more litigation, while civil rights are inevitably violated.”
In Arizona v. United States, 11-182, a 5-3 majority led by Justice Anthony Kennedy held that three other provisions in the law challenged by the Obama administration were preempted. Kennedy said those provisions either conflicted with federal law or Congress had “occupied the field” with federal regulation.
“The National Government has significant power to regulate immigration,” Kennedy wrote. “Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermine federal law.” Kennedy was joined by Chief Justice John Roberts Jr. and justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Justice Elena Kagan did not participate in the case.
After Kennedy summarized the majority opinion from the bench, Justice Antonin Scalia, speaking for almost 20 minutes, read a summary of his dissent, which was joined by justices Clarence Thomas and Samuel Alito. Scalia, castigating the federal government for failure to enforce federal immigration laws, said he would uphold all of the challenged provisions.
The majority’s decision, Scalia wrote, “deprives states of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the constitution itself nor even any law passed by congress supports this result.”
And in a rather unusual reference, Scalia said President Obama’s recent executive order permitting children of illegal immigrants to remain temporarily in the country if they meet certain conditions was evidence of the hollowness of one of the government’s arguments that it needed to be able to allocate “scarce enforcement resources.” That program will result in considerable administrative costs, he said.
“The President said at a news conference that the new program is ‘the right thing to do’ in light of Congress’ failure to pass the Administration’s proposed revision of the Immigration Act,” Scalia wrote. “Perhaps it is, though Arizona may not think so. But, to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.”
Kennedy separately analyzed each of the law’s four provisions that had been temporarily enjoined by the U.S. Court of Appeals for the Ninth Circuit.
Section 3 of the law, commonly known as S.B. 1070, created a new state misdemeanor: willful failure to complete or carry an alien-registration document. Kennedy said federal law makes the national government responsible for a comprehensive and unified system to keep track of aliens within the nation’s borders. Congress, in effect, had occupied the field of alien registration and Arizona intruded upon and conflicted with the federal scheme.
Section 5(C) also created a misdemeanor offense for an illegal immigrant to apply for, solicit in public or perform work as an employee or independent contractor. Congress, according to Kennedy, made a deliberate choice not to impose criminal penalties on aliens seeking or engaging in unauthorized work. “Arizona law would interfere with the careful balance struck by Congress with respect to unauthorized employment,” he wrote.
Section 6 authorized a state officer to make a warrantless arrest if the officer has probable cause to believe the person had committed a removable offense. The removal process, Kennedy wrote, is entrusted to the discretion of the federal government and implicates foreign relations and human concerns. This section, he said, creates an obstacle to Congress’ objectives.
Section 2(B) requires state officers to make a “reasonable attempt” to determine the immigration status of any person they stop, detain or arrest on some other legitimate basis if reasonable suspicion exists that the person is unlawfully in the country. Anyone who is arrested also must have his or her immigration status determined before being released. Kennedy said consultation between federal and state officials is an important feature of the immigration system. Although this provision raises concerns about prolonged detention, he wrote, the provision does not immediately conflict with federal law.
“There is a basic uncertainty about what the law means and how it will be enforced,” Kennedy wrote. “At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume Section 2(B) will be construed in a way that creates a conflict with federal law.” The Court’s decision, he said, does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.
The American Civil Liberties Union and other civil rights groups have challenged Arizona’s law on equal protection and other grounds. That lawsuit is pending in federal district court.
“Today’s decision is a partial but important victory against S.B. 1070,” Michael Keegan, president of People for the American Way, said in a statement, “and yet another reminder of how important it is that Congress move quickly to pass comprehensive immigration reform.”
Arizona’s two Republican senators, John McCain and Jon Kyl, said in a joint statement, “While we still want to fully review the Supreme Court’s decision, today’s ruling appears to validate a key component of Arizona’s immigration law, SB 1070. We believe Arizonans are better served when state and federal officials work as partners to protect our citizens rather than as litigants in a courtroom.”
Arizona’s S.B. 1070 was enacted in 2010. States with similar provisions to those considered by the Supreme Court are Alabama, Georgia, Indiana, South Carolina and Utah.
@|Marcia Coyle, chief Washington correspondent for ALM, the parent company of the Law Journal, can be contacted at firstname.lastname@example.org.